U.S. v. Muniz

• Decision Date: 22 July 1993
• Docket Number: No. 92-2192,92-2192
• Citation: 1 F.3d 1018
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo Orlando MUNIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1018

1 F.3d 1018

UNITED STATES of America, Plaintiff-Appellee, v. Leo Orlando MUNIZ, Defendant-Appellant.

No. 92-2192.

United States Court of Appeals, Tenth Circuit.

July 22, 1993.

David N. Williams, Senior Litigation Counsel, Albuquerque, NM (Don J. Svet, U.S. Atty., with him on brief) for plaintiff-appellee.

Joseph W. Gandert, Asst. Public Defender, Albuquerque, NM, for defendant-appellant.

McKAY, Chief Circuit Judge, WOOD, Jr., Senior Circuit Judge, ^* and ANDERSON, Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

Defendant Leo Orlando Muniz appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Muniz was indicted on January 9, 1992, on two separate counts. After a three-day jury trial, the jury found him guilty on one count and acquitted him on the other count.

Muniz raises five issues. He first appeals the district court's refusal to suppress statements he allegedly made in violation of his Fifth Amendment right not to incriminate himself. Secondly, he argues the court abused its discretion in failing to sever the two counts for trial. Thirdly, he claims the court abused its discretion by refusing to hold an evidentiary hearing on his claim that excessive pre-indictment and post-indictment delays violated his due process and speedy trial rights. Fourthly, Muniz believes his right of allocution at sentencing was denied. Finally, Muniz argues the court erred in denying his motion to dismiss the indictment because the United States allegedly violated the Interstate Agreement on Detainers Act by delaying his trial.

I. BACKGROUND

The counts involved two separate guns and two separate dates. The first count, the one on which Muniz was acquitted, charged that Muniz possessed a .22 caliber gun on January 6, 1991. A police officer testified that in the early morning of January 6, 1991, when she was investigating an alleged shooting at a residence in Albuquerque, New Mexico, she stopped Muniz outside near the residence. After hearing something metallic hit the ground, she found a .22 caliber gun where Muniz had been standing. A police field investigator also testified that Muniz's hands had trace metals on them indicating he had been near ammunition or had fired a gun. Additional testimony was given by a witness at the residence that she thought she saw Muniz with a gun earlier that evening.

The second count charged Muniz with possession of a .45 caliber gun on May 13, 1991. Muniz had been arrested on January 6, 1991, for state charges of aggravated assault and felon in possession of a firearm because of the above shooting incident but was mistakenly released from custody on May 13, 1991. When released from jail on May 13, Muniz went to his sister's apartment with one of his brothers and a friend. After a brief visit, Muniz left the apartment and went drinking with his friends.

Muniz's sister testified that Muniz returned to her apartment around 11:00 p.m. that evening visibly drunk and threatened her with a gun. Muniz displayed the gun which he loaded and unloaded repeatedly. Her children and another brother were also at the apartment. She testified that Muniz told her it was a .45 caliber gun and that one of the bullets had her name on it. Muniz left the apartment when he chased after his brother who had just fled the apartment. Muniz's sister called the police but by the time they responded, Muniz was no longer around.

A few hours later, Muniz returned to his sister's apartment and broke into it. His sister and brother escaped out windows in the back, the children having been sent to a neighbor's after the 11:00 p.m. visit. Again the police were called, and this time when they arrived, Muniz was still in the apartment. The gun was not then in his possession it was later found outside the apartment.

County police officers arrested Muniz and gave him his Miranda warnings. Muniz did not appear to listen to the warnings because he was cursing and yelling at the advising officer. While being transported to the local detention center, Muniz boasted that he had hidden the .45 caliber gun. Muniz stated that he would be able to work out a plea and be in jail for only a few months. ¹ Muniz repeated this while at a hospital receiving medical attention for a wound on his ear. Medical examiners at the hospital tested Muniz's blood alcohol level and found his blood alcohol level was .268. The legal limit of intoxication for driving offenses in New Mexico is .1.

Muniz was in state custody after his arrest on May 14, 1991, for aggravated assault and breaking and entering. The federal grand jury indictment followed. The United States Marshals Service filed a detainer on January 13, 1992, for Muniz who was still in state custody. ² The United States obtained a writ of habeas corpus for Muniz which was executed on March 12, 1992, when Muniz was arraigned in federal district court. The trial began on June 1, 1992, and the jury found Muniz guilty only of the May 13 possession.

II. ANALYSIS

A. Suppression of Statements

Muniz moved to suppress statements he made to police officers following his arrest in the early morning of May 14, 1991. The district court denied his motion after a suppression hearing held on May 28, 1992. The court found nothing in the evidence to reflect that Muniz was interrogated by the police nor held in coercive circumstances.

We review the court's decision and determination of the ultimate issue of voluntariness de novo. Davis v. North Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir.1987), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988). "But the trial court's rulings with regard to subsidiary factual questions, such as whether the police intimidated or threatened a suspect or whether the suspect was particularly susceptible to police coercion, are subject to review under the clearly erroneous standard." Chalan, 812 F.2d at 1307-08. The entire record is considered on appeal which includes evidence at the suppression hearing as well as at trial. United States v. Basey, 816 F.2d 980 (5th Cir.1987); United States v. Smith, 527 F.2d 692, 694 (10th Cir.1975) (on appeal may consider evidence from suppression hearing and trial).

Muniz argues the district court incorrectly placed the burden of proof on him at the suppression hearing rather than on the government. The government concedes that the court was mistaken when it concluded the hearing by stating: "It is the burden upon the defendant to state or prove by a preponderance of the evidence that his statements were not voluntary or they were made in response to coercive questioning." (R. at 50, vol. III.) Because the court stated the wrong legal standard, Muniz argues the clearly erroneous standard for factual findings is inapplicable citing United States v. Finefrock, 668 F.2d 1168 (10th Cir.1982).

It is unclear from the record, however, whether the court actually did apply the wrong standard. The burden of proof is on the government to prove the statements were voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986); United States v. Slater, 971 F.2d 626, 637 (10th Cir.1992). Which standard the court used is unclear because the court began the suppression hearing by stating: "This matter comes on for a hearing on the defendant's motion to suppress, and under the submissions, I believe the Government has the burden." (R. at 2, vol. III.) Nevertheless, under either standard, it is clear from the record that the district court had no doubts concerning the voluntariness of the statements, and whether the defendant had been interrogated. The judge concluded: "There's nothing in the record to reflect that he was in fact interrogated, and ... the Court finds that the statements were knowingly and voluntarily made." (Id.) Because we readily agree with the district court that the statements were voluntarily given, we affirm the denial of the defendant's motion. Cf. Finefrock, 668 F.2d at 1171 (appellate court could not resolve suppression issue when district judge had applied incorrect legal standard and indicated the case was a close one).

Muniz asserts the court erred by not suppressing his statements because they were not voluntarily given and were only made in response to direct questioning by police officers asking, "Where's the gun?" Muniz also argues he did not knowingly waive his Miranda rights when arrested at his sister's apartment.

The Fifth Amendment does not bar the admission of volunteered statements which are freely given. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). If a person voluntarily speaks without interrogation by an officer, the Fifth Amendment's protection is not at issue, and the statements are admissible. See United States v. Thoma, 726 F.2d 1191, 1197-98 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).

The police officer testified that he did not ask the defendant any questions when he brought the defendant to the detention center. The district court found that the transporting officer did not interrogate the defendant, and the defendant volunteered the statements that he had hidden the .45 caliber gun he had used to threaten his sister. The only contradictory evidence concerning the possible interrogation of the defendant was Muniz's own testimony at trial. Muniz, who did not testify at the suppression hearing, testified the officers repeatedly asked him where the gun was.

The issue of voluntariness is determined by the totality of the circumstances, considering the characteristics of the accused including among other things his or her age or lack of education or intelligence and details of the circumstances like any advice of a person's constitutional rights or the length of detention or prolonged questioning. Schneckloth v. Bustamonte, ...